J.B.B. v. J.L.B.

J
                                        No. 123,083

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           J.B.B.,
                                          Appellee,

                                              v.

                                          J.L.B.,
                                         Appellant.


                              SYLLABUS BY THE COURT


1.
       A party aggrieved by an order issued by a district judge pro tem who is regularly
admitted to practice law in Kansas, and such order arises out of a matter that falls within
the jurisdiction of a district magistrate judge, must file their appeal with the Court of
Appeals.


2.
       A district magistrate judge shall have the jurisdiction and power to preside over all
civil cases, save for 13 specific controversies which they are expressly excluded from
hearing absent the explicit consent of the parties.


3.
       A protection from abuse order is considered a civil order of protection and one
which a district magistrate judge is vested with the authority to preside over. As a result,
the proper appellate avenue for a party aggrieved by a protection from abuse order issued
by a district magistrate judge is to pursue review by the Court of Appeals.




                                              1
4.
        The Protection from Abuse Act, K.S.A. 60-3101 et seq., should be construed
liberally to promote the protection of victims of domestic violence from bodily injury or
threats of bodily injury and to facilitate access to judicial protection for the victims,
whether represented by counsel or proceeding pro se.


5.
        In relevant part, the Protection from Abuse Act defines "abuse" as the occurrence
of at least one or more of the following between intimate partners or household members:
(1) intentionally attempting to cause bodily injury, or intentionally or recklessly causing
bodily injury; or (2) intentionally placing, by physical threat, another in fear of imminent
bodily injury.


        Appeal from Leavenworth District Court; WILLIAM E. PRAY, judge pro tem. Opinion filed July 9,
2021. Affirmed in part, reversed in part, and vacated protection from abuse order.


        Joseph W. Booth, of Lenexa, and Robert Hadley Hall, of Leavenworth, for appellant.


        Robert R. Laing Jr., of Kansas City, for appellee.


Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.


        ISHERWOOD, J.: J.L.B. (J.L.) appeals the district court's decision to grant a
protection from abuse (PFA) order against her in favor of her former husband, J.B.B.
(J.B.). Given the similarities in the parties' initials, we will refer to them by their first and
middle initials for the sake of clarity. J.L. contends that there was not sufficient evidence
of bodily injury or a threat of imminent bodily injury to constitute abuse under the
Protection from Abuse Act. See K.S.A. 60-3101 et seq. (PFA Act). J.B. testified that
J.L.'s irrational behavior during the incident at issue, coupled with her physical assault of
his new girlfriend during the encounter, made him fearful for his own safety. The district
                                                    2
court accepted J.B.'s testimony and granted his request for an order of protection from
abuse. We are not required to do the same. A fair reading of J.B.'s testimony reveals that
it fails to clear the hurdle of substantial competent evidence required for the imposition of
such protective measures.


         Additionally, J.L. initially filed her appeal with the district court, believing that to
be the proper forum to review her challenge to imposition of the order. The district court
redirected her appeal to this court, a decision J.L. likewise challenges. The governing
statutory provisions dictate that jurisdiction over J.L.'s appeal properly lies with this
court.


         We therefore determine that the district court's judgment is affirmed in part,
reversed in part, and the protection from abuse order imposed against J.L. is vacated.


                          FACTUAL AND PROCEDURAL BACKGROUND

         J.B. filed a petition for an order of protection from abuse against J.L. on June 22,
2020. The district court conducted an evidentiary hearing on the petition on July 13,
2020. District Judge pro tem William E. Pray was assigned to preside over the case. J.B.
and J.L. both testified during the proceeding.


         J.B. informed the district court that on the day of the incident, he and J.L. were
still working through their divorce and met at a Casey's General Store to exchange
custody of their minor child. Upon J.L.'s arrival, it was immediately apparent that she
was upset over J.B.'s failure to remit a monthly payment owed on the truck J.B. had the
privilege of driving but which J.L. still owned. J.B. recalled for the district court that he
informed J.L. he would provide the payment in a matter of days, then turned and went
into the store. Unappeased by J.B.'s offer, J.L. forcibly entered the passenger side of the
vehicle, climbed over J.B.'s girlfriend, and grabbed the keys from the ignition of the

                                                 3
truck. Given the way the parties' temporary divorce orders were drafted, J.L. apparently
believed she possessed the legal authority to launch such self-repossession measures. A
struggle ensued between J.L. and J.B.'s girlfriend, during which the girlfriend sustained a
non-remarkable laceration. J.B. further testified that J.L. exhibited anger issues
throughout their relationship and pulled knives on her other ex-husband, so it left J.B.
wondering what J.L. was truly capable of in the fit of anger she was exhibiting that day.
The entire incident was videotaped by surveillance camera, and a copy of the captured
recording was provided to the district court by J.B. J.B. did acknowledge he was aware of
the district court order that conveyed the right of repossession to J.L., as well as the fact a
delay in payment had resulted from J.L.'s attorney losing the check that J.B. previously
delivered to him. That delay is apparently what prompted J.L.'s outburst that day.


         For her part, J.L. sought to refute the contention that she engaged in fisticuffs that
afternoon. She assured the district court that she neither threatened J.B. nor initiated a
physical assault. To the contrary, according to J.L., J.B. and his girlfriend restrained her
by taking ahold of each of her hands.


         At the conclusion of the proceeding, the district court found that J.L. should not
have undertaken "self-help repossession," and the consequence of choosing to do so was
a violation of the PFA Act and imposition of an order granting J.B.'s request for
protection. When J.L. requested the foundation for the district court's ruling, the judge
pro tem explained that "busting into [J.B.'s] truck and taking his keys is a threat to him
and his . . . possessions, and I, consequently, am finding that it is a violation."


         Following the district court's decision, J.L. attempted to file an appeal pursuant to
K.S.A. 2020 Supp. 20-310a(d), the provision under which Judge pro tem Pray was
appointed to the bench, and requested review by a district judge. The district court
dismissed the appeal, however, noting that the proper avenue for review was to file in this
court.

                                                4
       J.L. has now appealed to this court, arguing that no abuse occurred and, therefore,
no PFA order should have been issued. She further asserts that the judge erred when he
dismissed her appeal in the district court. She presented her sufficiency of the evidence
claim first, followed by her jurisdictional challenge. We have taken the liberty of
reversing the issues, believing that a proper analysis of this case must commence with the
clarification of any jurisdictional matters.


  DID THE DISTRICT COURT ERR IN REJECTING J.L.'S APPEAL SEEKING REVIEW FROM A
                           DISTRICT JUDGE PRO TEM?

       J.L. challenges the district court's dismissal of her attempt to secure appellate
review by a district court judge of Judge pro tem Pray's imposition of a protective order.
Specifically, she contends that K.S.A. 2020 Supp. 20-310a(d) provides the proper
pathway for relief because it states that when a judge pro tem is appointed under this
subsection of the statute, as Pray was, any orders subsequently issued by that appointee
are to be reviewed de novo in the district court. While this court agrees that the statutory
provision referenced by J.L. is not without a measure of confusion and includes internally
inconsistent language, the district court nevertheless properly concluded that an appeal to
this court was the appropriate avenue for J.L. to pursue in her quest to obtain review of
the protective order imposed against her.


Basic Legal Principles

       This issue raises concerns regarding appellate jurisdiction. Whether jurisdiction
exists is a question of law over which this court's scope of review is unlimited. In re Care
& Treatment of Emerson, 

306 Kan. 30

, 34, 

392 P.3d 82

 (2017). Similarly, review of J.L.'s
claim mandates an analysis of the governing statutory provisions. Statutory interpretation
presents a question of law over which appellate courts have unlimited review. Nauheim v.
City of Topeka, 

309 Kan. 145

, 149, 

432 P.3d 647

 (2019). When the record discloses a


                                               5
lack of jurisdiction, the appellate court must dismiss the appeal. Wiechman v. Huddleston,

304 Kan. 80

, 85, 

370 P.3d 114

 (2016).


       Resolution of this matter necessitates the navigation of three separate, yet
interrelated, provisions triggered by Pray's appointment: K.S.A. 2020 Supp. 20-310a(d),
K.S.A. 2020 Supp. 20-302b(a), and K.S.A. 2020 Supp. 20-302b(c)(2). The natural
inclination is to home in on the portions of those provisions which speak directly to
appellate review.


       Beginning with K.S.A. 2020 Supp. 20-310a(d), it states the following regarding
the appellate process:


               "(d) . . . Any party aggrieved by any order of a judge pro tem under this
       subsection may appeal such order and such appeal shall be heard by a district judge de
       novo. If the appeal is a small claims action, the appeal shall be under K.S.A. 61-2709, and
       amendments thereto. If the appeal is an action within the jurisdiction of a district
       magistrate judge, the appeal shall be under K.S.A. 20-302b, and amendments thereto."


       Turning then to K.S.A. 2020 Supp. 20-302b, the portion of that provision which
addresses appellate review is found at subsection (c)(2), which states as follows:


               "In accordance with the limitations and procedures prescribed by law, and
       subject to any rules of the supreme court relating thereto, any appeal permitted to be
       taken from an order or final decision of a district magistrate judge: (A) Who is not
       regularly admitted to practice law in Kansas shall be tried and determined de novo by a
       district judge, except that in civil cases where a record was made of the action or
       proceeding before the district magistrate judge, the appeal shall be tried and determined
       on the record by a district judge; and (B) who is regularly admitted to practice law in
       Kansas shall be to the court of appeals."




                                                     6
       Pray, a "regularly admitted" member of the Kansas Bar, was appointed to hear
matters "within the jurisdiction of a district magistrate judge" as provided in K.S.A. 2020
Supp. 20-302b. Thus, whether the district court properly directed J.L. to pursue her
appeal to this court turns on whether protection from abuse orders can be said to fall
"within the jurisdiction of a district magistrate judge." The answer to that question
requires that we remain under K.S.A. 2020 Supp. 20-302b, but we now focus our
attention on subsection (a), which reads:


               "Subject to assignment pursuant to K.S.A. 20-329, and amendments thereto, a
       district magistrate judge shall have the jurisdiction and power, in any case in which a
       violation of the laws of the state is charged, to conduct the trial of traffic infractions,
       violations of the wildlife, parks and tourism laws of this state or rules and regulations
       adopted thereunder, cigarette or tobacco infractions or misdemeanor charges, to conduct
       felony first appearance hearings and the preliminary examination of felony charges and to
       hear misdemeanor or felony arraignments. A district magistrate judge shall have
       jurisdiction over uncontested actions for divorce. Except as otherwise specifically
       provided in this section, a district magistrate judge shall have jurisdiction over actions
       filed under the code of civil procedure for limited actions, K.S.A. 61-2801 et seq., and
       amendments thereto, and all other civil cases, and shall have concurrent jurisdiction,
       powers and duties with a district judge." (Emphasis added.)


       Our research reveals that the italicized language clarifies that portion of Judge pro
tem Pray's authority as it relates to this case. That is, included within the purview of the
vast net cast to encompass "all other civil cases" are protection from abuse orders. This
court has previously held that a protection from abuse order is considered a civil order of
protection. See Kerry G., 

53 Kan. App. 2d 218

, Syl.; see also C.B. v. Bailey, No. 122,581,

2021 WL 2386378

, at *2 (Kan. App. 2021) (unpublished opinion) ("K.S.A. 60-3109
specifically provides that the ordinary rules of civil procedure apply to proceedings under
the protection from abuse act."). Moreover, because district magistrate judges share
concurrent jurisdiction with a district court, a district magistrate judge would seemingly
be permitted to preside over PFA claims. See K.S.A. 2020 Supp. 60-3103 ("Any district

                                                      7
court shall have jurisdiction over all proceedings under the protection from abuse act.").
Finally, K.S.A. 2020 Supp. 20-302b(a) also sets forth a list of 13 controversies which
district magistrate judges are specifically excluded from presiding over absent express
consent of the parties. The Legislature did not see fit to include protection from abuse
orders within that list.


       It is not lost on this court that an inherent conflict exists in the plain language of
K.S.A. 2020 Supp. 20-310a(d). Specifically, it states that "[a]ny party aggrieved by any
order of a judge pro tem under this subsection may appeal such order and such appeal
shall be heard by a district judge de novo," yet later directs that the proper avenue of
appeal for litigants such as J.L. is before this court. The tension between those directives
reflects an outdated inaccuracy in the statute worthy of correction, but not one which is
fatal to our conclusion here with respect to the propriety of the district court's decision
over J.L.'s appeal. K.S.A. 20-302b(a) was amended in 2015 to insert the requisite
language to include "all other civil cases" within the jurisdiction of district court
magistrate judges. This court is of the opinion that given the plain language of K.S.A.
2020 Supp. 20-310a(d)—the provision under which Pray was appointed, which states that
appeals taken from actions within the jurisdiction of a district magistrate judge are to be
pursued in accordance with "K.S.A. 20-302b, and amendments thereto"—that the
directive necessarily encompasses the 2015 amendments. Thus, J.L. was properly
directed to file her appeal from the imposition of a protection from abuse order, a civil
matter, with this court.


       Because the relevant statutory provisions reflect that Judge pro tem Pray was
authorized to act within the jurisdiction of a district magistrate judge—jurisdiction which
broadly encompasses all civil matters, including protection from abuse claims—the
district court correctly determined that to obtain review of the PFA order imposed against
her, J.L. needed to file her appeal in this court, not the district court. See K.S.A. 2020
Supp. 20-310a; K.S.A. 2020 Supp. 20-302b.

                                               8
       J.L. raised an additional appellate issue requesting that her claims not be dismissed
as moot in the event this court fails to resolve her case prior to the expiration of the PFA
order on July 13, 2021. Given the timing of this court's opinion, it is unnecessary to
address this issue.


 WAS THE DISTRICT COURT'S DECISION TO IMPOSE A PROTECTION FROM ABUSE ORDER
        AGAINST J.L. SUPPORTED BY SUBSTANTIAL COMPETENT EVIDENCE?

       J.L. challenges the sufficiency of the evidence the district court relied on in issuing
the PFA order and asserts there was not substantial competent evidence to reflect abuse
as defined in relevant statutes. J.B., of course, takes the contrary position, directing our
attention to J.L.'s entry into his vehicle. J.B. further contends that it is reasonable to
conclude that he was afraid because he faced having to ensure the safety of the occupants
of his vehicle and of the vehicle itself. Additionally, he likens the fear in the situation
involved here to a scenario in which a person is in their home and hears a loud noise
outside and, upon investigation, finds a third party vandalizing their property.


Basic Legal Principles

       When a party challenges the sufficiency of the evidence, this court determines
whether the district court's factual findings are supported by substantial competent
evidence and whether the findings are sufficient to support the court's legal conclusions.
Geer v. Eby, 

309 Kan. 182

, 190, 

432 P.3d 1001

 (2019); Gannon v. State, 

298 Kan. 1107

,
1175-75, 

319 P.3d 1196

 (2014). Substantial competent is "'evidence which possesses
both relevance and substance and which furnishes a substantial basis of fact from which
the issues can reasonably be resolved.'" Creecy v. Kansas Dept. of Revenue, 

310 Kan.
454

, 470, 

447 P.3d 959

 (2019). Stated another way, substantial competent evidence refers
to legal and relevant evidence that a reasonable person could accept as adequate to
support a conclusion. Geer, 309 Kan. at 190; Barnett v. Barnett, 

24 Kan. App. 2d 342

,
348, 

945 P.2d 870

 (1997).

                                               9
       Appellate courts "do not reweigh the evidence or make our own credibility
determinations, and we generally view the evidence in the light most favorable to the
party who prevailed in the district court." Kerry G. v. Stacy C., 

53 Kan. App. 2d 218

,
221-22, 

386 P.3d 921

 (2016). In doing so, we must accept "all evidence and inferences
that support or tend to support the [district court's] findings as true, and . . . must
disregard all conflicting evidence." Frick Farm Properties v. Kansas Dept. of
Agriculture, 

289 Kan. 690

, 709-10, 

216 P.3d 170

 (2009).


       The PFA Act should be construed liberally "to promote the protection of victims
of domestic violence from bodily injury or threats of bodily injury and to facilitate access
to judicial protection for the victims, whether represented by counsel or proceeding pro
se." K.S.A. 60-3101(b). PFA orders are by their nature subjective judgments, and the
district court is in the best position to know when they are warranted. Jordan v. Jordan,

47 Kan. App. 2d 300

, 306, 

274 P.3d 657

 (2012).


       After hearing testimony from both parties and watching a video of the incident, the
district court determined that a PFA order against J.L. was warranted. In making this
decision, the district court noted that J.L. seemingly sought to engage in a "self-help
repossession" of her truck. When J.L.'s counsel requested that the district court provide
J.L. with a more detailed reason for its decision to issue the PFA order, the court simply
responded: "I think busting into [J.B.'s] truck and taking his keys is a threat to him and
his . . . possessions, and I, consequently, am finding that it is a violation." This finding
cannot establish that J.L. committed an act of abuse as contemplated under the PFA Act.


       In relevant part, the PFA Act defines "[a]buse" as the occurrence of at least one or
more of the following acts between intimate partners or household members:


   • "Intentionally attempting to cause bodily injury, or intentionally or recklessly
       causing bodily injury"; or
                                               10
   • "Intentionally placing, by physical threat, another in fear of imminent bodily
       injury." K.S.A. 2020 Supp. 60-3102(a).


       J.B. testified that when J.L. opened the passenger side door of the truck, she
"climbed . . . over" his girlfriend to try to get the keys to the truck out of the ignition,
leading to a struggle between the two women over the keys. He also testified that J.L. had
"multiple" previous instances in which she exhibited anger issues. J.B. alleged that J.L.
had previously "pulled knives" on her other ex-husband and suggested that she may have
carried a weapon into court for the hearing. When asked whether J.L. threatened him
during the interaction, J.B. answered that she had threatened him "many times" in the
past. The most aggressive behavior that J.B. testified J.L. committed on the day of the
incident was that J.L. "was beating on [his] girlfriend," which he claimed caused him to
fear for himself.


       The court also watched the video of the encounter but seemingly did not place any
emphasis on the same or rely on it in any way in making its decision. We have likewise
undertaken a review of the video and similarly found it to be unpersuasive.


       The district court found that J.L.'s act of entering J.B.'s truck constituted a threat.
While this court has been reluctant to substitute the district court's judgment with our
own in protection from abuse matters, we are equally committed to ensuring that
individuals are not unjustly subjected to measures for which a firm evidentiary
foundation is lacking. Such is the case here. We decline to find that the evidence offered
in support of the protective order rose to the level of substantial competent evidence
required to establish that such a measure was warranted.


       Comparing the facts of this case with those considered in Trolinger v. Trolinger,

30 Kan. App. 2d 192

, 194-95, 

42 P.3d 157

 (2001), we recognize that while the evidence
in that case leaned toward the minimal end of the spectrum, it was, though, ultimately
                                               11
sufficient to sustain imposition of the order. Specifically, the Trolinger panel considered
the following evidence when reviewing the district court's order:


               "Valerie never specifically testified that Arby had done great physical harm to
       her, but she did testify that he had frightened her and that she was afraid of him.
       According to Valerie, Arby had made a point of having a discussion with her and told her
       how he could make bodies disappear. According to Valerie, Arby kept loaded weapons in
       the home, and the Oklahoma authorities had investigated him for possible involvement in
       the disappearance of his former wife. On one occasion, Valerie attempted to call her son
       while she was at home and found the phone had been disconnected, a car key was
       missing from her keyring, and the garage was padlocked.


               "Valerie testified about regular instances in which Arby would restrain her
       against her will by squeezing her to a point where she feared he was going to crack one of
       her ribs. She also testified that Arby had hit her son. According to Valerie, she was
       constantly in fear that Arby would do bodily injury to her and to her son." 30 Kan. App.
       2d at 194-95.


       The panel also outlined a portion of the testimonial evidence Arby presented in his
defense. But that is unnecessary here. Again, this court does not reweigh evidence. Kerry
G., 53 Kan. App. 2d at 221-22. It also accepts the evidence and inferences that support
the trial court's findings and disregards conflicting evidence. Frick Farm Properties, 289
Kan. at 709-10. The evidence before the district court, and likewise the evidence before
this court, is insufficient to support the district court's imposition of a protection from
abuse order against J.L. The order is vacated.


       The decision of the district court is affirmed in part and reversed in part, and the
protection from abuse order imposed against J.L. is vacated.




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